Date: 20030704
Docket: IMM-609-02
Citation: 2003 FC 836
Ottawa, Ontario this 4th day of July, 2003
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
SHANMUGAVADIVEL THAMOTHARAMPILLAI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Shanmugavadivel Thamotharampillai (the "Applicant") seeks judicial review of a decision of Senior Immigration Officer, J. Knight (the "SIO" or the "Officer"), dated January 23, 2002. In that decision, the Officer determined that she would not grant the Applicant a Minister's Permit, pursuant to section 37 of the former Immigration Act, R.S.C. 1985, c. I-2, (the —former Act") to allow him to remain in Canada. The Applicant seeks an order setting aside the Officer's decision and an order referring the matter back for redetermination by a different SIO.
FACTS
[2] The Applicant is a citizen of Sri Lanka. He came to Canada as a dependant of his parents, who were sponsored for landing by their son, the Applicant's brother, a permanent resident in Canada. The Applicant arrived in Canada in September 1991 and was granted permanent residence status at that time.
[3] He was subsequently charged with certain criminal offences in Canada. In August 1993 he was convicted of setting a false fire alarm, failing to appear in court, failing to attend court and carrying a concealed weapon. He received a three month sentence.
[4] In December 1993, he was convicted of aggravated assault and sentenced to 18 months in prison. He was granted parole on June 15, 1994, after only serving a partial sentence.
[5] During his time in custody, in February 1994, an immigration "section 27(1)" report was written and on June 13, 1994, a direction of inquiry was ordered under section 27(3) of the former Act. The inquiry was held over four sessions from August 14 to December 19, 1994. At the conclusion of the inquiry, a deportation order was issued against the Applicant because he was found to be a person described under section 27(1)(d) of the former Act.
[6] The Applicant was to attend an interview scheduled for March 6, 1995 and failed to appear or contact immigration. On March 10, 1995 his parole was suspended and a warrant was issued for his arrest. On May 8, 1995, an immigration warrant was issued.
[7] On August 22, 1995 the Applicant was arrested and charged with illegal possession of firearms and obstruction of justice for falsely identifying himself to police. He was detained for deportation.
[8] On September 18, 1995, he was recommitted to complete his sentence for aggravated assault. On November 15, 1995 he completed his sentence and was held on criminal charges stemming from the firearms offence. On January 3, 1996, these weapons charges were withdrawn. However, the Applicant remained in custody, as he was held in detention on an immigration warrant.
[9] The Applicant had been scheduled for removal in May 1996, but this was stayed by order of this Court, dated May 9, 1996, as he had filed a judicial review application challenging the decision to deport him. This application for judicial review was dismissed by Justice Muldoon on April 20, 2001: 2001 FCT 370, [2001] F.C.J. No. 599 (T.D.)(QL).
[10] In June 1996, he was transferred to Montreal to face several firearms charges and an attempted murder charge in relation to a July 25, 1995 shooting. The Applicant was found not guilty and transferred back to immigration detention. Information about this charge and disposition is found only on a criminal chronology document, prepared by a GTEC officer on January 8, 2002. This document was not disclosed to the Applicant.
[11] On February 7, 1997, after being released from immigration detention on January 16, 1997, the Applicant was charged with possession of a loaded .357 revolver. At the time of his arrest he provided police with a false name. By September 25, 1997 he had completed his sentence and was placed back in immigration detention.
[12] In May 2000, the Applicant submitted an application on humanitarian and compassionate ("H & C") grounds, for landing from within Canada. This application for exemption from the section 9(1) of the former Act was based largely on the risk that he would face if removed to Sri Lanka.
[13] On July 5, 2001, the Applicant was approved by the Visa Officer for exemption from section 9(1) of the former Act. At the same time, he was advised that he would likely be found criminally inadmissible under section 19(1)(c) of the former Act, and could not be landed. He was given a chance to respond to this inadmissibility finding.
[14] On July 18, 2001 he was released from immigration detention on a cash bond. On October 11, 2001 he was taken into immigration custody for allegedly violating the terms and conditions of the cash bond.
[15] On October 30, 2001, the Applicant applied for a Minister's Permit. On November 22, 2001, the Officer was informed by the Greater Toronto Enforcement Centre ("GTEC"), that GTEC, in partnership with the Toronto Police Service, had reason to believe that the Applicant was a gang member and consequently would be inadmissible pursuant to section 19(1)(c.2) of the former Act. The Applicant was given a chance to respond to this new information by letter from the Officer dated November 27, 2001.
[16] The Applicant responded with submissions in a letter dated December 31, 2001. In these submissions, he claimed to be innocent of the section 19(1)(c.2) allegation and that Immigration had not shown him anything that directly linked him to involvement in a criminal organization. The Applicant claimed not to have any further charges or convictions other than those already known to Immigration. He proceeded to explain an alleged misunderstanding which occurred regarding his address, which had resulted in him being found in violation of the terms of the cash bond and taken back into immigration custody.
[17] By letter dated January 11, 2002, the Officer informed the Applicant that the information he provided by letter dated October 30, 2001 was reviewed together with the other information in his application, and that it appeared that he was inadmissible for landing in Canada pursuant to section 19(1)(c) of the former Act. This letter stated that his application for permanent residence was refused but his request for a Minister's Permit was still under consideration. It also stated that there was an effective deportation order against him and that a copy of the letter was being forwarded to GTEC.
[18] By letter dated January 23, 2002, the Officer refused the Applicant's request for a Minister's Permit. The Officer stated as follows:
Further to our letter of 11 January 2002 advising you that your application for permanent residence has been refused and your counsel's written request of 30 October 2001 requesting that we consider you for a Minister's Permit since you were inadmissible to become landed.
Your request for consideration of a Minister's Permit has been carefully reviewed.
Please be advised that this request is denied.
Your case will now be forwarded to the Greater Toronto Enforcement centre in Mississauga as you are under an effective Deportation Order.
[19] The reasons for this decision are set out in the Officer's notes, dated January 22, 2002, which were sent to the court and the Applicant pursuant to Rule 9 of the Federal Court Immigration Rules, 1993, SOR/993-22 on March 4, 2002. The SIO outlined three reasons why she would not recommend that a Minister's Permit be granted in the Applicant's case:
-He has a lengthy criminal history in Canada involving weapons and violence;
- He stated in his statutory declaration, dated October 29, 2001, at para. 5 that in two incidents, he was in the company of individuals who had gang connections;
- The Officer was satisfied that GTEC had evidence linking the Applicant to gang association.
APPLICANT'S SUBMISSIONS
[20] First, the Applicant submits that the standard of review is reasonableness simpliciter, that is, whether the reasons of the Officer can sustain a somewhat probing inquiry by the Court upon judicial review. Here, he relies on Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R 817.
[21] Second, he submits that the Officer failed to disclose to him a GTEC document, a chronology chart detailing the Applicant's criminal background in Canada. The Applicant argues that the Officer comments in her reasons that if she had had the information in this chronology document prior to making her decision to waive section 9(1) of the former Act, she would have refused his H & C application. According to the Applicant, this shows that this document weighed heavily in her decision not to recommend a Minister's Permit.
[22] The Applicant submits that one of the fundamental components of natural justice is the right to be heard. He argues that the duty of fairness requires that an immigration officer allow a person the opportunity to respond to extrinsic evidence gathered about him, particularly when that evidence is adverse to his case. Consideration of extrinsic evidence without providing notice will constitute a breach of procedural fairness: Shah v. Canada (Minister of Employment and Immigration.) (1994), 170 N.R. 238 (F.C.A.) and Chan v. Canada (Minister of Citizenship and Immigration) (1994), 87 F.T.R. 62.
[23] The Applicant argues that he was denied a fair opportunity to present his case. By not disclosing this "client-specific" document, and by relying on such document in making her final decision, the Officer breached the duty of fairness owed to him. If he had been provided with an opportunity to respond, the Applicant submits that he would have been able to give certain explanations regarding the criminal charges that are revealed in the chronology, that are now contained in his affidavit filed for this judicial review proceeding. Such explanation from the Applicant could have affected the ultimate outcome of the decision.
RESPONDENT'S SUBMISSIONS
[24] The Respondent submits that the Applicant has failed to demonstrate that the chronology document should have, due to procedural fairness, been disclosed. Alternatively, the Respondent argues that this document was not material to the Officer's decision.
[25] Concerning the standard of review, the Respondent argues that the decision relative to a Minister's Permit is different from a decision to exempt an applicant from the normal requirements of the former Act, as was the issue in Baker, supra. Therefore, the Respondent submits that Baker does not support the Applicant's argument that the standard of review is reasonableness simpliciter. Given the highly discretionary nature of the decision here under review, and applying the pragmatic and functional approach, the Respondent submits that the standard of patent unreasonableness is appropriate: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.
[26] The Respondent submits that there is no authority for the proposition that a chronology of criminal incidents must be disclosed to the Applicant. The information contained in the chronology was already known to the Applicant and as such, it did not need to be disclosed to him: Kishavarz v. Canada (Minister of Citizenship and Immigration) (2000), 189 F.T.R. 72. The chronology document reiterated allegations that had arisen in the past at the Applicant's various appearances before the courts and adjudicative inquiries and did not impede his response to the case against him. The Respondent says that the Applicant was given every opportunity to make submissions with respect to the allegations that he was affiliated with certain gangs with criminal connections throughout the Officer's decision-making process.
APPLICANT'S REPLY
[27] The Applicant filed a reply to the Respondent's memorandum of fact and law on May 27, 2002. He argues that the request for Minister's Permit does not differ greatly from an H & C request for an exemption under the former Act, particularly, as in this case the Minister's Permit request was made in the context of an H & C application which was approved at the first stage.
[28] The Applicant argues that the nature of a document that was received and not disclosed by an officer is irrelevant. What is determinative is whether the document was indeed extrinsic evidence that was relied upon by the officer, without giving the Applicant a chance to respond.
[29] Finally, the Applicant argues that the case of Kishavarz, supra, is distinguishable from the present case. In Kishavarz, the memorandum of the Minister did not contain information that the applicant did not have, it was merely a summary and compilation of the information already disclosed to the applicant. In the present case, the chronology of the Applicant's criminal history was not a summary or compilation of information that had already been presented in Immigration's disclosure to the Applicant.
ISSUE
1. Did the SIO breach a principle of procedural fairness in failing to disclose extrinsic information to the Applicant?
ANALYSIS
[30] In my opinion, the Respondent's failure to disclose the chronology document of the Applicant's criminal activity in Canada breached the duty of fairness. The chronology document should have been disclosed to the Applicant, as it contained detailed and different information about his criminal record, than he had previously revealed. This document may have included inferences made and details of the Applicant's record which were inaccurate, or, in any event, deserved a chance for clarification and response by him.
[31] The Applicant should have been provided with an opportunity to respond to such evidence. The tribunal record reveals that the chronology chart was prepared by "T.L. Steffler", a GTEC officer, on January 8, 2002 and forwarded to the SIO on January 9, 2002, via e-mail. However, the actual source of the information in the chronology chart is not clear. This is a document which contained extrinsic information and was new in the sense that certain information contained in it is not found in the Applicant's H & C application or submissions.
[32] The Applicant claimed in his submissions of December 31, 2001 and his H & C Application forms, that he had already declared all of his criminal charges and convictions to Immigration. Part "L" of the H & C Application forms contain a series of questions related to an applicant's history of criminal charges and convictions. I note that the Applicant signed a declaration as part of his H & C application, part "M", declaring that the information he had given in his application was truthful, complete and correct, dated May 26, 2000. In this H & C application, the Applicant does not refer to the attempted murder charge and not guilty disposition, arguably the most serious crime he is alleged to have committed. However, this information is contained in the undisclosed, GTEC chronology document
[33] The criminal chronology document included charges that had not been previously disclosed by the Applicant and included details of the offences he had been charged with that may have been inaccurate or incomplete. This discrepancy, in my opinion, supports the finding that the chronology of criminal history chart should have been disclosed so that the Officer could then have made her decision concerning the application for a Minister's Permit with the Applicant's response before her.
[34] This case is different from Kishavarz, supra, where this Court held at paragraph 21, that there was no breach of procedural fairness where a memorandum was not released to an applicant who was applying for discretionary ministerial relief under the former Act because it "...did not contain new or extrinsic evidence nor did it contain any incorrect or misleading information." In Kishavarz, supra, the defining features of the disputed information were that it was not already known to the applicant and it did not contain extrinsic or incorrect information.
[35] Although the Applicant in the present case can be said to have knowledge of his criminal record, there are apparent discrepancies, as outlined above, in what the chronology document says and what the Applicant, himself, has revealed. Further, there are details in the chronology document which may be unknown to the Applicant, for example, details surrounding the offences he had committed or was alleged to have committed. Therefore, this document should have been disclosed to him.
[36] I agree that Shah, supra, relied on by the Applicant is still authority for the general proposition that if a decision-maker is going to rely on extrinsic evidence not brought forward by the applicant, she must give the applicant a chance to respond to such evidence. However, there is more relevant and recent case law, namely Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407 (C.A.) and Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 3 (C.A.), which expand and refine this general proposition stated in Shah, supra.
[37] In Haghighi, supra, Evans J.A. stated the following at paragraphs 26-27, regarding procedural fairness and disclosure of extrinsic evidence:
Fifth, in addition to the admonition that immigration officers owe more than a minimal duty of fairness when deciding subsection 114(2) applications, Baker, supra, also restored to the mainstream of procedural fairness analysis the task of determining the content of the duty of fairness owed by immigration officers when making inland H & C decisions. The question is whether the disclosure of the report was required to provide Mr. Haghighi with a reasonable opportunity in all the circumstances to participate in a meaningful manner in the decision-making process.
Hence, in deciding whether disclosure of the PCDO's report is required, the Court must consider, inter alia, the factors identified by L'Heureux-Dubé J. for locating on the fairness spectrum the duties owed by the immigration officer in a subsection 114(2) case. The inquiry into what is required to satisfy the duty of fairness must be contextualized: asking, as Shah, supra, directed, whether the report can be characterised as "extrinsic evidence" is no longer an adequate analytical approach.
[Emphasis added]
[38] The Federal Court of Appeal in Haghighi, supra, went on to consider the contextual considerations that are involved, as per the reasoning in Baker, supra, to determine whether an immigration officer was required by the duty of fairness to disclose a report to a H & C applicant.
[39] In Bhagwandass, supra, Sharlow J.A. for the Federal Court of Appeal summarized the "Baker factors" as set out in Haghighi, supra, as follows at paragraph 22:
Haghighi also establishes that, in considering whether the duty of fairness requires advance disclosure of an internal Ministry report on which a decision maker will rely in making a discretionary decision, the question is not whether the report is or contains extrinsic evidence of facts unknown to the person affected by the decision, but whether the disclosure of the report is required to provide that person with a reasonable opportunity to participate in a meaningful manner in the decision-making process. The factors that may be taken into account in that regard may include the following: (i) the nature and effect of the decision within the statutory scheme, (ii) whether, because of the expertise of the writer of the report or other circumstances, the report is likely to have such a degree of influence on the decision maker that advance disclosure is required to "level the playing field", (iii) the harm likely to arise from a decision based on an incorrect or ill-considered understanding of the relevant circumstances, (iv) the extent to which advance disclosure of the report is likely to avoid the risk of an erroneously based decision, and (v) any costs likely to arise from advance disclosure, including delays in the decision-making process.
[Emphasis added]
[40] As stated in these two Federal Court of Appeal cases, the question to be asked is whether disclosure was required to provide the Applicant with a reasonable opportunity in all the circumstances to participate in a meaningful manner in the decision-making process. Was disclosure of the chronology document required to allow the Applicant's meaningful participation in the decision-making process?
[41] In my opinion, disclosure of the chronology document should have occurred in this case. The Respondent has not demonstrated that disclosing this chronology document would have compromised any ongoing police investigation.
[42] Considering the factors outlined in Haghighi, supra, particularly factors (i), (ii) and (iii), the Applicant was denied his ability to participate in a meaningful way in the decision-making process. The decision in this case was of great importance to the Applicant, as the Minister's Permit was his one chance to remain legally in Canada, pending a pardon for his convictions. Given that the Applicant had been assessed as facing risk to his life or other cruel punishment if returned to Sri Lanka by an earlier Post-Claim Determination Officer ("PCDO") risk assessment, this decision was of great importance for his own personal security.
[43] The chronology document also appeared to have had a great deal of influence on the Officer, as revealed by her memorandum (see below at paragraph 50). Not disclosing the document may also have resulted in an incorrect or ill-considered understanding of the circumstances surrounding his offences.
[44] Furthermore, there is evidence on the record which indicates that the Officer understood that the chronology chart of the Applicant's criminal history should have been disclosed to the Applicant if he was not aware of the information contained within it. This is in the form of e-mail correspondence from the Officer to the GTEC officer who provided her with the chronology. This e-mail, dated 11/01/02, states, in part:
Hi Terri,
Had a very long conversation with Julie Wassif-Suleiman re clt and M.P.
Julie agrees that I can refuse on Stage 2 but there are some issues to be clarified before rendering a decision on the request for a Minister's Permit.
1) Are counsel and the clt aware of the information that was contained in your chronology?
(If not, we will have to give them a copy and allow them 30 days to respond)
2) Where did you obtain the specific details regarding the incidents? (ie is this taken from written police occurrence reports or was it verbally supplied by the police)
[Emphasis added]
[45] The record before this Court contains no response to either of the Officer's questions in this e-mail. Both questions are highly relevant to the accuracy and truth of the information contained in the chronology and the fairness involved in dealing with the document and the Applicant in this case.
[46] Also on the record is an undated memorandum from the Officer to RHQ Immigration Program Advisor, Julie Wassif Suleiman, stating, in part, the following:
GTEC requested file to do investigation.
They have returned file with the following memo and road map.
No copy of their [section] 27 report or other evidence was submitted.
Waldman is requesting MP based on positive risk and no family ties in Sri Lanka.
As per IP5, we must make clt and Waldman aware of GTEC's findings.
Given GTEC has not provided us with their evidence but refer to their investigation and decision to write 27 report, I am of the opinion just to advise Waldman and clt that GTEC alleges that the subject is a member of the gang. I think the road map contains some statements that may be volatile if released to Mr. Waldman as is, on the other hand, could we be accused of withholding information if we don't release the road map.
[Emphasis added]
[47] It is unclear from the record what "road map" was received from GTEC . In fact, it does not appear on the certified tribunal record that is before this Court. In my opinion, the above memo was apparently written after November 15, 2001 when the Officer wrote to the Applicant informing him that GTEC had requested his file, as they were preparing a full report, and such file had, to that date, not yet been returned by GTEC. The letter must also have been written prior to the Officer's letter of November 27, 2001, where she informs the Applicant of a summary of the information received, to date, from GTEC, referring to the GTEC memo, received at CIC Oshawa on November 22, 2001. The "road map" referred to in the above memorandum cannot be the chronology document, which is dated January 8, 2002 and was sent by the GTEC Officer by e-mail dated January 9, 2002.
[48] This memo's reference to some statements that could be considered "volatile" by Applicant's counsel makes it questionable as to whether the Respondent failed to disclose another document. The reason for such non-disclosure appears to be that counsel for the Applicant would dispute the information contained therein. This is unacceptable conduct, as disputing reports and information gathered by the Respondent is precisely what applicants and their counsel must be permitted to do if a decision making process is to be fair. It is unfair not to disclose information which could spark such debate.
[49] I also note that attached to the Officer's Nov 27, 2001 letter which provided the Applicant with a summary of GTEC's allegations of the Applicant's involvement with gang organizations, was a copy of the FOSS notes with some details of the full report prepared by GTEC. Why would full disclosure be seen as necessary up to the point of receiving the chronology chart from GTEC on January 9, 2002, and then denied after that point? Fairness requires consistency, in my view, and the Respondent has not pointed to any privilege or other valid legal concern as to why the GTEC- prepared chronology was not released to the Applicant.
[50] The Respondent's alternative argument, that the criminal chronology document was not material to the Officer's decision, must fail in light of the Officer's notes of January 22, 2002, which constitute the reasons for the decision under review in this case. These notes state, in part:
GTEC sent me a chronology of the client's criminal background in Canada. Information which was not in my possession at the time I waived A9(1). This information had not been previously released to me because from my understanding GTEC was afraid that it might jeopardize their investigation
Had I been aware of this information in July, it is unlikely that I would have waived A9(1).
[Italics in original]
[51] It is clear, in my view, that the document over which disclosure is disputed in this case was of critical importance to the Officer in her decision that the Applicant should not be granted a Minister's Permit. It is obvious from the notes that constitute the Officer's reasons that this document would have changed her mind regarding exempting the Applicant from section 9(1) of the former Act. Presumably, the Officer, in stating that it would have changed her mind regarding the H & C decision, considered that this information would have outweighed the positive risk opinion from the PCDO officer concerning the Applicant's risk if returned to Sri Lanka. Therefore this was significant to her decision regarding issuance of a Minister's Permit.
[52] As I have already determined that this judicial review application should be allowed on the basis that the Respondent breached a principle of procedural fairness, I will not comment upon the substance of the impugned decision, nor the standard of review that would apply in this situation.
[53] Section 350(1) of the current Immigration and Refugee Protection Regulations, SOR/2002-227 ("IRPR") mandates that where a decision or act under the former Act is referred back by the Federal Court for determination after the coming into force of the IRPR and its enabling statute, the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), then the decision or act which is referred back must be determined in accordance with IRPA. Section 24(1) of IRPA permits a foreign national who is inadmissible to be issued a temporary resident permit if an officer "...is of the opinion that it is justified in the circumstances". Section 24(1) also mandates that such a permit "may be cancelled at any time".
[54] In my opinion, this permit is similar, but not identical, to the previous system of applying for a Minister's Permit pursuant to section 37(1) of the former Act. IRPA provides for the issuance of a similar permit, pursuant to the exercise of the Minister's discretion, which would allow the Applicant to remain in Canada.
[55] The Applicant has requested that a question be certified. After reviewing the parties' submissions on the proposed question, it is my opinion that this question should not be certified. It does not meet the test, as stated in section 74(d) of IRPA, that is, it is not a serious question of general importance.
ORDER
This application for judicial review is allowed. The decision of the Officer, dated January 23, 2002 denying the Applicant's request for a Minister's Permit is set aside. The Applicant is to be given a chance to make submissions on the chronology document and his request to remain in Canada is to be reconsidered pursuant to IRPA, by a different Officer. The Respondent is to give
no consideration to the "road map" document which did not appear on the tribunal record before this Court.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-609-02
STYLE OF CAUSE: SHANMUGAVADIVEL THAMORTHARAMPILLI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, FEBRUARY 25, 2002
REASONS FOR ORDER
AND ORDER: HENEGHAN J.
DATED: July 4, 2003
APPEARANCES:
Lorne Waldman
FOR THE APPLICANT
Marcel Larouche
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lorne Waldman
Waldman & Associates
281 Eglinton Ave.
Toronto, Ontario
M4P 1L3
Telephone No.: 416-482-6501
Fax No.: 416-489-9618
FOR THE APPLICANT
Marcel Larouche
Department of Justice
Ontario Regional Office
The Exchange Tower
130 King Street West
Suite 3400, Box 36
Toronto ON
M5X 1K6
Telephone No.: 416-954-7262
Fax No.: 416-954-8982
FOR THE RESPONDENT